14 GRIEVANCES, APPEALS and DISPUTES

14.01 Grievance Procedures

14.01.02 You may also ask for help to restore the harmonious working environment that you need to achieve your potential and enjoy equal employment opportunity.

Definitions

14.01.03 'Unfair' means

• not fair; biased or partial; not just or equitable; unjust; or
• marked by deceptive, dishonest practices;

'unlawful' means

• not lawful; contrary to law; illegal; not sanctioned by law.
  (Macquarie Dictionary, 1997)

14.01.05 The University has a duty of care towards all staff and must provide a safe and supportive workplace. It unequivocally condemns all forms of workplace bullying and harassment. Workplace bullying is 'the repeated less favourable, unsuitable and unreasonable treatment of a person by another or others in the workplace' and is against the Code of Conduct.

14.01.06 Bullying includes behaviour that intimidates, offends, degrades or humiliates you, and may take place in private, or in front of other staff, students or others in the workplace. It may or may not involve unlawful discrimination.

14.01.07 Discrimination may be direct, indirect or systemic and includes discrimination on the grounds listed in the definitions.

14.01.08 Not all these possible areas of discrimination are unlawful discrimination under State and Commonwealth legislation. Discrimination that is not unlawful may not be able to be dealt with by an outside agency.

14.01.09 Unlawful discrimination includes sexual harassment and racial and homosexual vilification.

14.01.10 The Director, Personnel, or the chair of the relevant review or appeals committee, must consult with the EEO Officer if your grievance also alleges that unlawful discrimination has occurred.

14.01.11 If you can appeal to a review or appeals committee in the University but choose to go to an external organisation, the Vice-Chancellor must agree before you can use these procedures as well.

Matters outside these Procedures

14.01.12 If you have a grievance or appeal as a member of staff about appointment to a position, probation review or promotion, this should be sent to the Director, Personnel.

14.01.13 You should not use these procedures to report that another staff member is in breach of the legal requirements of that staff member's employment. The Protected Disclosures procedures (on the Personnel Office web site) encourage these reports, particularly on serious and substantial matters.

14.01.14 You should take any concerns about safety to your supervisor, the OH&S Coordinator, the University OH&S Officer, or the Chair or a member of the OH&S Committee and refer to the University's OH&S policies.

Dealing with Grievances

14.01.15 Heads, other managers and supervisors must try to prevent problems in the workplace and settle grievances. Most grievances can be settled informally in the workplace.

14.01.16 If your grievance is about another staff member, you should try to settle it directly with that staff member. If this is difficult, impractical or unsuccessful, you should take the grievance to your supervisor, or ask for help from a Contact Officer (or a Personnel Officer, which refers to members of the staff of the Personnel Office trained as Contact Officers).

14.01.17 If you have a grievance about a decision affecting your employment (other than in 14.01.12), you may talk to your supervisor. If this is difficult, impractical or unsuccessful, you may ask a Contact Officer for advice and help.

14.01.18 The Contact Officer is a readily accessible first point of contact allowing you to talk about your concerns informally, privately and confidentially in a friendly and supportive environment. You will be helped to consider choices and suitable actions that may resolve the matter. On the other hand, the Contact Officer may help you to lodge a formal complaint. The role of the Contact Officer is to restore a harmonious working environment wherever possible.

Lodgment of a Formal Grievance

14.01.19 If your grievance is about your supervisor or a decision made by your supervisor, you should refer the grievance in writing to your supervisor's supervisor or your Head, or to a Contact Officer or a Personnel Officer. Each of these persons (and the supervisor) will observe the principles, procedures and confidentiality in this clause when dealing with grievances.

Time Limits

14.01.20 Both you and your supervisor when trying to settle a grievance locally must do so as quickly as possible and usually within 10 working days.

14.01.21 There is usually a 3 month limit on the time between you becoming aware of a grievance and lodging it. A grievance lodged after that time may be dealt with if the person, or committee, dealing with it thinks that there are special circumstances.

14.01.22 There will be a limit of 15 working days within which persons will respond to a legitimate request for information.

14.01.23 There will be a limit of 20 working days within which persons will respond to a legitimate request for an interview.

14.01.24 All of those involved must make sure that, as far as possible, the formal grievance process is finished in the University by 3 months after it is lodged. You may ask the Vice-Chancellor to intervene after 3 months.

Dealing with a Formal Grievance

14.01.25 Heads, other managers and supervisors must take suitable actions to settle grievances. A Personnel Officer or Contact Officer may also deal with formal grievances in the first instance. References below to a Contact Officer include any person who receives your grievance, whether a supervisor, Head, Contact Officer or a Personnel Officer.

14.01.26 You will be protected in any action for defamation by the defence of qualified privilege, as long as you raise the grievance under these procedures, and it is not intentionally malicious, frivolous or broadcast indiscriminately.

14.01.27 Your grievance will be handled by as few people as possible. A person authorised to receive and document information for reporting to appropriate people, who follows these procedures, is also protected from liability for defamation by the defence of qualified privilege. Persons complying with these procedures may reasonably expect the University to meet their legal fees if there is a defamation action.

14.01.28 The Contact Officer will support you but will be impartial and refrain from taking sides. The Contact Officer will try to help resolve the issues to your satisfaction and, wherever possible, restore a harmonious working environment. (A person against whom a grievance is made is entitled to an unbiased hearing.) This may include consulting with both parties as in 14.01.39 to negotiate a mutually acceptable resolution.

14.01.29 You may be accompanied by another person to talk to the Contact Officer. If necessary, the Contact Officer may get the help of an interpreter through the Personnel Office.

14.01.30 Everything said between you and the Contact Officer will be confidential. The Contact Officer will not act without your consent. However, a Contact Officer who believes that a notifiable criminal offence has been committed must, with your knowledge, report to the Director, Personnel, and the Manager, Security, who will contact the appropriate authority.

14.01.31 The Contact Officer will listen, get the details of your grievance, collect relevant written material, and talk about your choices. You may just wish to know your rights or how best to handle the grievance yourself.

14.01.32 The Contact Officer will tell you if the grievance cannot be dealt with under these procedures and should be taken to an appropriate review or appeals committee, to a Union, or to an outside agency.

14.01.33 The Contact Officer will help you to decide and start suitable action. The Contact Officer will encourage you to take your own action, and will not act for you without your full consent.

14.01.34 Only the basic details of the consideration of the grievance will be written down. If resolved, a confidential summary of the type of grievance and action will be kept on a confidential Personnel Office file for destruction after 5 years.

14.01.35 If your grievance involved alleged unlawful discrimination, these details will also be sent to the EEO Officer.

14.01.36 An agreed record of any action to correct the grievance will be placed on your personal file in the Personnel Office. If any disciplinary action is taken against a person who is the subject of the grievance, that person's file will be noted under the Disciplinary Procedures.

14.01.37 If a University decision, action, inaction or policy change gave rise to the grievance, the Contact Officer will make sure that, wherever possible, your status will not be changed by the decision, action, inaction or policy change while these procedures are being followed.

14.01.38 If your grievance is about another staff member, the Contact Officer, with your agreement, will tell that person that a grievance has been lodged, the specific nature of the grievance and your identity. No action can be taken if you ask that your grievance be anonymous or not specific. The person against whom the allegations are made must be made aware that any retaliatory action is unlawful and may be misconduct or serious misconduct.

14.01.39 If both parties agree, the Contact Officer may try to resolve the grievance by bringing them together for informal discussions. The aim of the meeting is to reach an agreement which all parties are willing to accept.

14.01.40 The Contact Officer may also ask the Director, Personnel to refer the matter to a suitable independent and neutral person with mediation skills.

14.01.41 Other choices may include your taking direct action yourself by going back to the informal local procedure and talking to the other party in the grievance or taking the matter to the appropriate manager. At any stage, you are entitled to approach your Union for action under the Dispute Settling Procedures in this Agreement, or to contact an outside agency.

14.01.42 If a complaint that should have come under the Dispute Settling Procedures has been dealt with in good faith as a grievance, the University or the Union may choose to deal with it under the Dispute Settling Procedures.

14.01.43 You may also withdraw the grievance and should do so in writing. The Contact officer will then destroy all material relating to your grievance.

14.01.44 If the grievance is not successfully resolved, the Contact Officer, with your consent, will refer the matter and all associated notes and documents to the Director, Personnel for submission to a Review Panel under 14.02. If there appear to be unresolved issues of alleged unlawful discrimination, the Director, Personnel will consult with the EEO Officer.

14.01.45 If your grievance relates to an action or decision taken in the Personnel Office, the matter will be referred to the Vice-Chancellor for allocation to a senior officer for submission to a Review Panel under 14.02.

Review Findings

14.01.46 The panel will report its findings and any recommendations on suitable measures to be taken about the grievance to the Vice-Chancellor. This report will be given to you, any staff member against whom the grievance was directed, and your Head.

14.01.47 If the recommendations relate to disciplinary action, the matter will be dealt with under the Disciplinary Procedures.

14.01.48 The panel may also make recommendations on the broader implications of the grievance for the University's policies, practices and procedures. Offers, agreements and other outcomes of a grievance are not precedents for similar grievances and will not prejudice positions that the University, the Union or you may take either in similar circumstances or on more general issues.

14.01.49 If action is recommended to be taken by the Head and the Head thinks that the recommendation cannot or should not be fully carried out, this will be reported to the Director, Personnel.

14.01.50 The Director, Personnel and/or the Vice-Chancellor will consider any recommendation from the panel that falls outside the authority of the Head or any report provided under 14.01.49 and take suitable action.

14.01.51 If you are not satisfied with the outcome or the decision taken, you may take your grievance to the Union to be dealt with under the Dispute Settling procedures, if appropriate, or to any relevant outside agency.

Appointment of Contact Officers

14.01.52 Up to 16 Contact Officers may be chosen from the staff of the University to provide a first contact point for you if you have a grievance.

14.01.53 The appointed Contact Officers will be given a suitably placed and equipped room on the University campus.

14.01.54 You may see a Contact Officer by making an appointment for a mutually convenient time, or without appointment at set times.

14.01.55 All staff will be reminded of this system through regular publication in Staff News. Staff with experience and skills in handling grievances will be invited to apply for selection as vacancies arise.

14.01.56 The powers of Contact Officers and Personnel Officers are set out in this clause.

14.01.57 The duties of Contact Officers and Personnel Officers are:

• to be available to meet you by appointment to talk about your concerns, and to go to meetings of all Contact Officers;
• to be trained in handling grievances and be ready to help you;
• to maintain confidentiality about grievances; and
• to deal with grievances under these procedures.

• chosen by the Vice-Chancellor after a call for nominations and an evaluation by a Selection Committee appointed by the Vice-Chancellor and chaired by the Chair of the EO Committee. The selection criteria will be:
  • basic counselling or conflict resolution skills, preferably with some training and experience;
  • integrity, discretion and support for principles of social justice;
  • commitment to EEO principles;
  • sensitivity to issues affecting EEO groups and awareness and understanding of discrimination issues; and
  • knowledge or awareness of this Agreement, anti-discrimination legislation, and the role of relevant external bodies;
  • responsible to the Vice-Chancellor, and regularly consulted, supervised and trained by the EEO Officer;
  • given time off in lieu for the time acting as Contact Officers;
  • entitled to have their contribution as Contact Officers to the work of the University considered in regrading, reclassification or promotions and will not be prejudiced in any regrading, reclassification or promotion or in their regular work;
  • kept aware of resources available to them in the University and outside it;
  • removed from the role by the Vice-Chancellor if it has been shown that the Contact Officer has seriously breached these procedures, e.g. by not maintaining confidentiality.

14.01.59 The training for Contact Officers and Personnel Officers covers:

• Skills: The basic skills required are those of:
  • listening to complaints and hearing what is being said;
  • conciliation and mediation;
  • investigation and report preparation; and
  • maintaining confidentiality.
• Knowledge: The main areas to be covered will be:
  • the scope of relevant legislation and the functions and powers of external bodies under that legislation;

• the role, jurisdiction and functions of the Commission and of Unions about terms of employment;
• special agencies and groups that may receive complaints or may best help staff. Representatives of these groups and agencies should take part in the training program; and
• the roles and services provided by CPD, the Director of Equal Opportunity, EEO Officer, Personnel Office, Unions, University Counselling and Health Services, and University Solicitor.

• to maintain and increase skills and to receive updates to legislation and procedures; and
• to protect the University from legal action that may arise from the mishandling of a grievance.

14.02 Appeals and Reviews

14.02.01 If you, or your Union for you, ask for a review of an unresolved grievance under 14.01 or appeal against a decision or a failure to decide by the University under other procedures, the Vice-Chancellor will appoint a Review Panel to conduct a review and report to the Vice-Chancellor.

14.02.02 A Review Panel will have three members, one from each of the following pools of potential Panel members:

• Chairs agreed between the Vice-Chancellor and the Union;
• University staff chosen by the Vice-Chancellor; and
• University staff chosen by the Union branch;

14.02.03 The Vice-Chancellor will consider the particular policy or procedure and will decide the Panel members after consulting with the Union.

14.02.04 The Chair need not be legally qualified or experienced in industrial relations.

14.02.05 The Vice-Chancellor and the Union may agree that persons other than those in the pools (if staff members or not) may be appointed to Panels.

14.02.06 The University and the Union will cooperate to set up and to maintain the membership of the pools over time.

Convening of Panels

14.02.07 The Personnel Office will:

• receive matters for consideration by a Review Panel;
• arrange for the meeting of the Review Panel.

Representation before Review Panels

14.02.09 You may be represented at the Review Panel by an agent of your choice who is a staff member (but not a practising solicitor or barrister) or by an officer or staff member of the Union. The University encourages you to be appropriately represented.

14.02.10 The University may be represented by a staff member (but not a practising solicitor or barrister) or by an officer or staff member of the Australian Higher Education Industrial Association.

Terms of Reference for the Panel

14.02.11 The terms of reference will be decided by the Vice-Chancellor, for the particular policy or procedure and in consultation with the EEO Officer, if necessary. The terms may be changed in the same way at any time.

Review Panel Processes

14.02.12 The Panel may decide that your grievance does not involve matters of unfair treatment or discrimination (if unlawful or not) and does not come under 14.01 and should be more properly dealt with through another channel, either in or outside the University. You may then choose to approach a more relevant body. You always keep responsibility for any action taken.

14.02.13 The Panel will make sure that you and all concerned are told of:

• the nature and specific details of the grievance or appeal;
• the procedures that the Panel will follow; and
• the methods that are available for all parties to respond fully to the grievance or appeal and to the Panel's investigation of it.

• give you an opportunity to be interviewed and make sure that you can present your case and respond to allegations, claims or representations in the University's case or that of any other party;
• interview any person and consider any further material as it believes appropriate to establish the merits or facts of the case;
• conduct all interviews in the presence of yourself or your advocate and the Vice-Chancellor or the Vice-Chancellor's advocate;
• be able to look at all papers about your case, including referees' and/or assessors' reports sent in confidence. The papers will be given by the Personnel Office to the Secretary and not copied, taken away or kept by any member of the Panel;
• give proper regard to the obligations of the University about freedom of information, privacy and the principles of natural justice;
• conduct proceedings as quickly and fairly as possible, to finish in 20 working days of lodgment. (In certain circumstances, e.g. sickness, the Panel may extend this period);
• conduct proceedings in private (unless otherwise agreed by the Union and the Vice-Chancellor) and as a committee of inquiry;
• make sure that you or your representative and the Vice-Chancellor or the Vice-Chancellor's representative have the right to:
  • ask questions of interviewees (but the Committee will prevent aggressive and offensive cross-examination of a person claiming to have been sexually harassed);
  • make submissions; and
  • present and challenge evidence;
• make recommendations by majority and may go on without any appointed member who does not go to a nominated time or place, without good reason;
• report to the Vice-Chancellor and you when possible;
• and keep a tape record of the proceedings (but not its own confidential deliberations), which will be available on request to you and the Vice-Chancellor.

14.02.16 The Panel will report its findings and any recommendations about suitable measures to be taken under 14.01 or other relevant procedure to the Vice-Chancellor. This report will be made available to you, the Head and any staff member against whom a grievance was directed.

14.02.17 When an appeal is finished by the Review Panel, you will have no further rights of internal appeal under 14.02.01 about the matter but this does not exclude the jurisdiction of any external court or tribunal that, but for this Agreement, could deal with the matter.

14.03 Disputes Settling Procedures

14.03.02 The aim is to avoid and resolve disputes by giving and explaining information and cooperating and consulting. Matters in potential dispute should be resolved locally as far as possible.

14.03.03 This procedure will be used to try to resolve any industrial matter.

14.03.04 If any industrial matter occurs:

• the Union representative(s) and the appropriate University representative(s) will talk about the dispute and try to reach written agreement, subject to any necessary ratification. In particular, Working Parties and members of Working Parties are to raise any concerns directly with the respective Lead Negotiator to allow discussions to take place;
• where a dispute is not resolved through these discussions, either party may ask for a Disputes Committee to meet within 5 working days, unless agreed otherwise. The Disputes Committee will have:
  • 2 University nominees; and
  • 2 Union nominees;
• the Disputes Committee will try to resolve the matter within 5 working days of its first meeting, in a written agreement, subject to any necessary ratification; and
• the Committee can look at personal files (subject to the consent of the staff concerned), job descriptions, performance management assessments, reports and other relevant papers (except those restricted by the Freedom of Information Act 1982) and to interview relevant people both in and outside the University.

14.03.05 Until the procedures in 14.03.04 have been finished:

• work will continue in the normal way. Where a bona fide OH&S issue exists, a staff member will not work in an unsafe environment but, where appropriate, will accept re-assignment to other work or places of working until the normal place of work has been decided to be safe;
• University and the Union will not take industrial action;
• the University will not change work, staffing or the organisation of work, if this is the subject of the dispute, nor take any other action likely to worsen the dispute;
• the clause immediately above will not be used by the Union to delay or stop the implementation by the University of matters of inherent institutional policy or discretion if there has been the consultation expected by 3.04.06 or 16.0; further, a refusal by the Union to consult will not delay or stop this implementation; and
• the subject matter of the dispute will not be taken to the Commission by the Union or the University.

14.03.07 If the dispute relates to an alleged ambiguity or uncertainty in this Agreement, either party may apply for a change to the Agreement to remove the alleged uncertainty or ambiguity or the Commission may act of its own motion to take steps to vary the Agreement.